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As a result of a consent decree, the EPA has issued a proposed rule that addresses the prevention of hazardous substance discharges under section 311(j)(1)(C) of the Clean Water Act (CWA). This section directs the President to issue regulations to prevent discharges of oil and hazardous substances from onshore and offshore facilities, and to contain such discharges.The EPA assessed the consequences of hazardous substance discharges into the nation's waters, and evaluated the costs and benefits of potential preventive regulatory requirements for facilities handling such substances. Based on an analysis of the frequency and impacts of reported CWA hazardous substances discharges and the existing framework of EPA regulatory requirements, the Agency is not proposing additional regulatory requirements at this time.

Statement of Need:

CWA 311(j)(1)(C) provides that the President "[establish] procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances from vessels and from onshore and offshore facilities, and to contain such discharges..." EPA was delegated authority for regulating onshore facilities under CWA 311(j)(1)(C) by Executive Order 12777, and was redelegated authority for regulating offshore facilities landward of the coastline under CWA 311(j)(1)(C) by the Department of the Interior. See 40 CFR 112, appendix A.

Summary of the Legal Basis:

In 2015, the EPA was sued for failure to finalize a rulemaking for chemicals under the CWA 311(j)(1)(C). This litigation was settled and a consent decree was filed with the court in February 2016 (Environmental Justice Health Alliance for Chemical Policy Reform v. U.S. EPA). The EPA is conducting this rulemaking in accordance with the consent decree and proposed rule on June 25, 2018, and intends to have the Administrator sign a final rule by August 25, 2019.

Alternatives:

The Agency considered three alternatives. The first alternatives was to establish a prevention program that included nine regulatory elements aimed at preventing CWA HS discharges. The second alternative was to establish a targeted approach that selects a limited set of requirements designed to prevent CWA hazardous substances discharges. This regulatory option could establish targeted requirements under one or more of the nine program elements under the first option; however, four elements are specifically identified and discussed. The third, and proposed alternative, establishes no new requirements under the authority of CWA 311(j)(1)(C).

Anticipated Costs and Benefits:

Since the proposed action recommended no new regulatory requirements, it neither imposes incremental costs nor provides incremental environmental protection benefits.

Risks:

The proposed action recommended no new regulatory requirements; therefore, EPA anticipates no changes in risk as a result of this action. In the 40 years since CWA section 311(j)(1)(C) was enacted by Congress, multiple statutory and regulatory requirements have been established under different Federal authorities that generally serve to, directly and indirectly, prevent CWA hazardous substances discharges.